В данной статье будет немного информации на русском и много на английском. Не так давно вышла наша с моим руководителем статья о допинге и недавних делах касающихся допинга и нарушений анти-допинговых правил. Статья вышла в китайском журнале, публикую оригинальный текст здесь на правах авторства.
Recently, the topic of doping and anti-doping rule violations became of the top ones in the world of sport. Investigations, re-examinations of samples and even open acceptance of the use of prohibited substances take place almost every week now. But why that impact was created and why so much news has appeared in the media lastly? To that, we will try to give our response in the further paragraphs.
As a general introduction, it is very important to clarify what in principle is doping. First of all, the one should mention the World Anti-Doping Agency (WADA) – a governing body in the world of sport that manages the doping issues.
The World Anti-Doping Agency (WADA) was created at the First World Conference on Doping in Sport held, in Lausanne, Switzerland, on February 2-4, 1999, which produced the Lausanne Declaration on Doping in Sport. WADA has the status of the independent international anti-doping agency.
Pursuant to the terms of the Lausanne Declaration, the World Anti-Doping Agency (WADA) was established on November 10, 1999, in Lausanne to promote and coordinate the fight against doping in sport internationally. WADA was set up as a foundation under the initiative of the IOC with the support and participation of intergovernmental organizations, governments, public authorities, and other public and private bodies fighting doping in sport.
What is considered to be a doping and a doping rule violation? The answer to that question is contained in the most important document elaborated by the WADA – World Anti-Doping Code (WADA Code).
Doping is defined as the occurrence of one or more of the anti-doping rule violations set forth in respective articles of the WADA Code. These violations could take the form of the presence of a prohibited substance or it metabolites or markers in an Athlete’s sample, use or attempted use by an Athlete of a prohibited substance or a prohibited method, evading, refusing or failing to submit to sample collection and several other violations described in the article 2 of WADA Code.
It should be noted, as well, that the cases related to the anti-doping rule violations have a standard of proof at a higher level than, for instance, the disputes of contractual nature. Thus, the WADA Code directly states that “the standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be on a balance of probability.”(1)
Thus, it is clearly seen that the burden of proof lying on the athlete is high. Once the prohibited substance is found in his sample (or any other violation of anti-doping rule occurred) it is his responsibility to proof the contrary or to rebut the assumption of the deciding body that he has committed such violation. This is called the principle of strict liability – each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.
The document which contains the prohibited substances is called simply “The Prohibited List”. It is being regularly updated (but no less often than once a year) and it should be notified to all stakeholders in the process of competitions (being federations, athletes, sports clubs etc.) in advance. Recent changes into the Prohibited list entered into force on 1 January 2016 which in fact caused some impact in the world of sport.
Meldonium saga. Update from WADA.
WADA included one substance in the list of prohibited which resulted in so much scandalous news. Meldonium is a non-specified substance prohibited at all times (in- and out-of-competition) since 1 January 2016. It had been added to the Monitoring Program on 1 January 2015. Meldonium is used to treat ischaemia: a lack of blood flow to parts of the body, particularly in cases of angina or heart failure. It increases blood flow, which improves exercise capacity in athletes. Wada found “evidence of its use by athletes with the intention of enhancing performance” by virtue of carrying more oxygen to muscle tissue.(2)
In March 2016 Maria Sharapova, Russian tennis star, on a special press conference, admitted having used this substance and reviving that she had failed the doping test. Following this event, several other athletes were reported to fail the test with the presence of the same substance in their samples. Among others, Endeshaw Negesse, the 2015 Tokyo marathon champion, was also banned after reportedly testing positive for the same substance. Others include Olga Abramova and Artem Tyschcenko, two Ukrainian biathletes, Eduard Vorganov, a Russian cyclist and Ekaterina Bobrova, a Russian ice dancer.(3)
The numerous occasions of the presence of Meldonium in the samples of the athletes drove WADA to investigate more closely the characteristics of this medicine. As the number of the athletes who used Meldonium exceeded 172 persons (4), WADA decided to issue the notice, clarifying the situation with that drug. The main goal of the Notice is to admit that there is currently limited data available on excretion studies relating to meldonium; and, as such, several studies are currently being conducted involving WADA accredited laboratories, which WADA will share when available. Until such time, the Notice provides guidance as to how organizations should manage meldonium cases within their respective jurisdictions, which may be to ‘pursue’ or ‘stay’ until further excretion research has been made available.(5)
Namely, the Notice admits the lack of sufficient studies on the meldonium excretion times from the body of an athlete. However, it established the concentration of the substance permitting to arrive at a different opinion than just suspend the athlete for violation of an anti-doping rule. Thus, said Notice states inter alia:
“a. If the concentration is between 1 and 15 µg/mL and the test was taken before 1 March 2016, given that the results of ongoing excretion studies are needed to determine the time of the ingestion.
b. If the concentration is below 1 µg/mL and the test was taken after 1 March given that the results of ongoing excretion studies are needed to determine the time of the ingestion. The following options may be followed, at the discretion of the Results Management Authority when the results management is stayed:
i. The athlete continues serving his or her provisional suspension until the excretion studies results are available and a decision can be taken.
ii. The provisional suspension is lifted. However, in this case, the athlete shall be informed that if it is later established based on the results of the excretion studies that he/she did take the drug on or after 1 January 2016, (i) all the results during the period in which the provisional suspension is lifted may be cancelled and prizes returned, and (ii) the ineligibility period ultimately imposed is likely to start on the date of the decision (with a credit for the provisional suspension already served).
3) Cases where the concentration is below 1 µg/ml and the test was taken before 1 March 2016 are compatible with an intake prior to January 2016. If the anti-doping organization finds that the athlete could not reasonably have known or suspected that the substance would still be present in his/her body on or after 1 January 2016, then a finding of no fault or negligence may be made.”
By issuing that Notice, WADA did not lift the responsibility from the athletes, confirming once again that meldonuim is a prohibited substance, however, made a step to shift the degree of such responsibility due to lack of scientific knowledge.
In this regard, two questions seem logical and still open. Firstly, why WADA included that substance in the Prohibited List without sufficient knowledge on the period of its elimination from the system of the athletes? Even in the notice it is stated, that the “the renal elimination of meldonium is expected to vary significantly between individuals, depending on the dosing and duration of the drug administration protocol.”
The second question related to the issue is that why the athletes did not apply for a Therapeutic Use Exemptions? This one has two possible answers — once again the lack of scientific knowledge that permits to say of the full variety of effects of meldonium on the system of the athletes; secondly, the athletes could administrate this drug for other reasons than described in its abstract. Such, for instance, was the case of Sharapova who said having taken meldonium as a treatment for magnesium deficiency and having family history of diabetes.
The one fact which remains constant is that it was the responsibility of the athletes to timely check their usage of any drug to prevent even possible violation of the anti-doping rules. Once the substance is included in the Prohibited List, the athletes shall obey the rules established by WADA to have the right to compete on a certain level.
Recent CAS cases involving doping.
In the following part, several recent CAS awards will be shortly summarized in order to have the view on the recent tendencies and interesting reflections.
Arbitration CAS 2015/A/3925 Traves Smikle v. Jamaica Anti-Doping Commission (JADCO), award of 10 August 2015 (operative part of 22 June 2015)
In that award, the Panel was driven to some interesting suggestions. The Athlete, Mr. Smilke, was tested positive during in-competition test followed up by Jamaica Anti-Doping Commission. The particularity of the case was that the sample (urine) was collected from the third attempt as the amount of sample from the first and the second attempt was not sufficient according to anti-doping rules. However, the procedure of collection was conducted with violations of the International Standard of Testing (IST). Namely, when the Athletes could not produce enough Sample, International Standard of Testing states the following:
“D.4.11 Where the volume of urine provided by the Athlete is insufficient, the DCO (Doping Control Officer) shall follow the partial Sample collection procedure set out in Annex F – Urine Samples – Insufficient Volume.
Annex F – Urine Samples – Insufficient Volume
F.4.3 The DCO shall then instruct the Athlete to open the relevant equipment, pour the insufficient Sample into the new container (unless the Sample Collection Authority’s procedures permit retention of the insufficient Sample in the original collection vessel) and seal it as directed by the DCO. The DCO shall check, in full view of the Athlete, that the container (or original collection vessel, if applicable) has been properly sealed.
F.4.7 When the DCO is satisfied that the requirements for Suitable Volume of Urine for Analysis have been met, the DCO and Athlete shall check the integrity of the seal(s) on the container(s) containing the previously provided partial Sample(s). Any irregularity with the integrity of the seal(s) will be recorded by the DCO and investigated according to Annex A – Investigating a Possible Failure to Comply.
F.4.8 The DCO shall then direct the Athlete to break the seal/s and combine the Samples, ensuring that additional Samples are added sequentially to the first entire Sample collected until, as a minimum, the requirement for Suitable Volume of Urine for Analysis is met.”
In his Appeal, the Athlete was relying on CAS 2014/A/3487, stating that the Respondent’s violation of the foregoing IST for partial sample collection procedures “could reasonably have caused” the presence of HCTZ (the prohibited substance found in the simple of the Athlete) in his urine sample. In other words, it is “plausible” his urine sample was contaminated by water or sweat containing HCTZ from another person or in the environment at the National Stadium in Kingston, Jamaica during the collection process; therefore, there was insufficient evidence for the Panel to be comfortably satisfied that he committed an anti-doping offense in violation of Article 2.1 of the JADCO Anti-Doping Rules. In particular, his opening and closing the sample collection container six times with wet hands after washing them with water from a faucet in a sink outside the cubicle where he provided the sample and/or from taking beverages from a cooler with ice in the sample collection waiting room at the National Stadium caused the plausible environmental contamination of his urine sample with HCTZ.
However, the Panel did not share the Athlete allegations and its conclusions in the case at stake could be resumed as following:
“1. Violations of some International Standard for Testing (IST) are so serious that the breach precludes a CAS panel from being comfortably satisfied a doping violation has been committed. On the other hand, it cannot always be assumed that the violation of an IST erodes the integrity of a sample; determination of whether its breach has a “significant or material impact on a testing result” generally is a question of fact requiring careful review of all evidence and witness testimony.
2. Non-compliance with IST partial sample collection procedures does not automatically invalidate the sample’s test results. Doing so would invalidate a positive test result even if the possibility of contamination is factually implausible based on the evidence and conflict with the express language of Article 3.2.2 of the JADCO Anti-Doping Rules and the 2009 WADC, which requires an athlete to establish a departure from an IST “could reasonably have caused the Adverse Analytical Finding”.
Thus, the Panel admitted that in principle there was a violation of IST in the case at stake, but the degree of that violation is not sufficient to invalidate the test result. Unlike to the case CAS 2014/A/3487 which was quoted by the Athlete, in the case at stake, there was no other person presented in the doping test area, the container was almost all time sealed and no one touched it except the Player. So the Panel found that it is unlikely that the sample was contaminated due to the environmental influence. The reference to CAS 2014/A/3487 was considered irrelevant and the appeal of the Athlete was completely dismissed.
CAS 2015/A/4163 Niksa Dobud v. Fédération Internationale de Natation (FINA)
This award of the CAS treats the evasion to present a sample for a doping test. The athlete (water polo player) Niksa Dobudwas tested in-competition after a game in Budva. However, the Doping Control Officers came to his house in Dubrovnik (which was indicated in the system as available for check at the specified time) on the very next day for an out-competition test. At his home, the Player’s wife opened the door, after explanation from the DCO she left and a male individual came to the door. It was central issue in the proceedings whether this male individual was the Athlete or his brother-in-law (which was alleged by the Athlete). This person did not say anything and also left without permitting to DCO to come inside. With several consequent attempts of calling and ringing at the door, the DCO were threatened by the Athlete’s wife that she would call the police if the DCO would not go away and pronouncing that the Athlete was not at home. As the result – the DCO was not able to collect the sample.
At the hearing, the Appellant alleged that he was not indeed at home as after the game he stayed in Budva and came to Dubrovnik only the next day and to the other apartment. However, he admitted not having changed his whereabouts information contained in the system of the DCO. He claimed that the person that opened the door to DCO the next day was his brother-in-law and not him, while the DCO could have just mistaken by identity. As to the threats of his wife – that was caused due to illness of their little child so she was stressed and panicked. The members of the Athlete’s family confirmed his allegations.
On the other side, the DCO confirmed in their allegations that it was the Athlete indeed who opened the door to them but without saying anything in particular (for instance that this person was not the Athlete) he did not let them pass inside to collect the sample. While the DCO were waiting for the Athlete at the door, they looked at the photos of the Athlete to confirm his identity on the Internet. However, they had no possibility to check any identity documents from that person. Besides, between the first time the hosts opened the door to the DCO and the last one (when the Athlete’s wife said that she would call to police if the DCO would not go away) around three hours have passed. So even the Player was not at home indeed, the DCO doubted that such information could take 3 hours to be told to them.
The central issue of the case that the Panel was confronted was identification issue. With regards to it, the mentioned award states:
“87. The Panel now considers the identification evidence itself. There is, it was told, no specific Swiss law guidance on how to approach a case dependent upon visual identification. The Panel has found helpful the considerations alluded to in the English criminal case of R v Turnbull, 1977 QB 224 at p.228-231 which encourages caution against too ready acceptance of such identification when identity is in issue:
“In our judgment, the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment. First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases, if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger.”
The Panel realised an examination of visual identification both of the Athlete and his brother-in-law. Besides, due to the facts mentioned before and the one that previously, the Athlete was tested by the same DCO (around one year before the events of the case at stake), the Panel was satisfied with the manner how the DCO proved the like hood of their version – that in fact there was no mistake of identification by the officers. The version of the Athlete and his family was not convincing for the Panel and the Panel concluded that it was made to save the career of the Athlete from being jeopardised by his mistake. In the end of the day, the decision of the FINA (first instance which handled the case) was upheld by the Panel and the Athlete was obliged to serve a 4-year suspension for the doping test evasion.
Tatyana Andrianova (Russia) and the All-Russia Athletic Federation (ARAF)
The case reveals an interesting point of the Doping proceedings – re-examination of the samples. This goes in line with the modernising of technologies for analysing the samples and in principle is covered by existing anti-doping rules. In the case at stake, the sample of Russian Athlete was re-examined almost 10 years after being checked for the first time.
On 9 August 2005, Tatyana Andrianova competed at the IAAF World Championships in Helsinki and underwent an anti-doping control. The analysis did not show the presence of any prohibited substance and the sample was transferred for long-term storage at the WADA-accredited laboratory in Lausanne.
Almost ten years later, on 6 August 2015, the sample was re-analysed and found to contain metabolites of the substance stanozolol, a prohibited substance on the WADA 2005 Prohibited List. On 2 October 2015, the ARAF ADC found that the Athlete had committed an anti-doping rule violation and imposed a two-year period of ineligibility on her, concluding on 21 September 2017. It also disqualified all results achieved between 9 August 2005 and 8 August 2007.
On 23 November 2015, Ms. Andrianova filed an appeal at the CAS seeking the annulment of the ARAF ADC decision. The Sole Arbitrator found that the IAAF Anti-Doping Rules (ADR) in force between 9 August 2005 and 31 December 2014 required the ARAF to bring any anti-doping rule violation charges against the Athlete within 8 years from the date of the sample collection (i.e. 9 August 2005). However, the Sole Arbitrator found that ARAF erroneously opened disciplinary proceedings against the Athlete in August 2015 – more than 8 years after her sample collection and that for this reason the appeal had to be upheld and the ARAF ADC decision annulled. As the 8-year statute of limitations had expired prior to 1 January 2015, the 10-year statute of limitations provided under the new 2015 ADR cannot apply.(6)
As it can be seen, the doping is very important concept in the world of modern sport. Recently it has become very sensitive topic due to numerous occasions of violations by sportsmen from different countries of anti-doping rules established by WADA. In this regard, the qualified help of lawyers is essential to the sportsmen as they frequently cannot react in appropriate way and sometimes start to blame other persons (even Doping Officers, WADA or governing structure of their sports discipline) which in our opinion is not correct. The first step and general recommendation for all sportsmen are not to make rash conclusions and commentaries, try to establish the way how the prohibited substance entered the system of the athlete and work on the version of the events. The most important thing in the life of the athletes, their career, is at stake in all cases of anti-doping rule violations, and they should consider extremely responsibly all possible consequences of such violation and not commit them obviously. In the contrary case, the consequences could be irreparable.
And now with the Olympic Committee (IOC) starting to research old cases with new investigation methods, has released more than 50 cases in Beijing 2008 and London 2012, which will drive to new Olympic champions and new medals but what about the rest of the competitors? They will also be scrutinized as for their samples. Could we have some events without winners? Let’s see.
 WADA Code, article 3.1.